Automotive Maintenance Machinery Company

National Labor Relations Board - Board Decisions

Jun 21, 1939

13 N.L.R.B. 338 (N.L.R.B. 1939)

In the Matter of AUTOMOTIVE MAINTENANCE MACHINERY COMPANY
and STEEL WORKERS ORGANIZING COMMITTEE ON BEHALF OF AMAL-
GAMATED ASSOCIATION OF IRON , STEEL & TIN WORKERS OF NORTH
AMERICA, LODGE 1744
Case No. C-711.-Decided Jwne 21, 1939
Automotive and Garage Repair Equipment Manufacturing Industry-Inter-
ference, Restraint , and Coercion : interrogation of employees concerning their
union affiliation and activity-Company-Dominated Union: domination of and
interference with formation and administration ; support ; initial impetus to
organization of "inside " union given by employer -conducted election ; hostility
shown by factory superintendent toward one organization , and friendliness
toward another ; meetings in plant during working hours ; hasty recognition, or
misleading statements concerning recognition , of newly formed union ; disestab-
lished , as agency for collective bargaining-Contract : employer ordered to cease
giving effect to any contract it has or may have entered into with organization
found to be company -dominated-Unit Appropriate for Collective Bargaining:
production and maintenance employees , excluding watchmen and clerical and
supervisory employees ; maintenance employee also serving as watchman, ex-
cluded; "set up men," excluded-Discrimination : discharges ; charges of, not
sustained as to two employees , sustained as to three-Employee Status: not
affected by discriminatory discharge-Collective Bargaining : charges of refusal
to bargain dismissed , because evidence did not sustain finding that union repre-
sented a majority-Reinstatement Ordered-Back Pay: awarded.
Mr. Robert R. Rissman, for the Board.
Fyffe ct Clarke, by Mr. Albert J. Smith, of Chicago, Ill., for the
respondent.
Mr. Lester F. Collins, of Waukegan, Ill., for the Amalgamated.
Mr. Harold J. Tallett, of North Chicago, Ill., for the Association.
Mr. Robert Kramer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Steel Workers
Organizing Committee, herein called the S. W. O. C., on behalf of
Amalgamated Association of Iron, Steel & Tin Workers of North
America, Lodge 1744, herein called the Amalgamated, the National
13 N. L . R. B., No. 40.
338
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 339
Labor Relations Board, herein called the Board, by the Regional
Director for the Thirteenth Region (Chicago, Illinois), issued its
complaint, dated February 21, 1938, against Automotive Maintenance
Machinery Company, North Chicago, Illinois, herein called the re-
spondent, alleging that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies'of the complaint and of notice of a hearing to be held on Febru-
ary 28,1938, at Waukegan, Illinois, were duly served upon the respond-
ent, the S. W. O. C., and Aminco Workers Association, herein called
the Association, a labor organization, alleged in the complaint to have
been dominated by the respondent. On February 28, 1938, the Re-
gional Director ordered that the Association, pursuant to its motion
dated February 25, 1938, be permitted to intervene in this proceeding
In respect of the unfair labor practices, the complaint alleged ib.
substance (1) that on or about May 1, 1937, the respondent initiated
formed, and sponsored a labor organization of its employees known a4
Ammco Workers Association, that thereafter the respondent domi-
nated, interfered with, and contributed support to the Association.
and that on or about May 4, 1937, the respondent entered into a con-
tract with the Association recognizing it as the sole bargaining agent
for all employees in the respondent's plant; (2) that on or about May
15, May 29, August 11, and August 20, 1937, and thereafter, although
a majority of the respondent's employees within an appropriate unit
had designated the Amalgamated as their representative for the pur-
poses of collective bargaining, the respondent refused to bargain collec-
tively with the Amalgamated as the exclusive representative of such
employees; (3) that on May 7, 1937, the respondent discharged and
thereafter refused to reinstate L. J. Warner, Sr., an employee of the
respondent, and on May 15, 1937, discharged and thereafter refused
to reinstate L. J. Warner, Jr. and Frank Jordan, employees of the
respondent, and on August 20, 1937, discharged and thereafter re-
fused to reinstate Charles Olson, an employee of the respondent, for
the reason that they had joined and assisted the Amalgamated and had
engaged in concerted activities with other employees of the respond-
ent for the purpose of collective bargaining and other mutual aid and
protection, and that by such discharges and refusals to reinstate, the
respondent discouraged membership in the Amalgamated; and (4)
that by the above and various other acts, such as interrogating its
employees concerning their labor union affiliations and advising, urg-
ing, and warning them to refrain from becoming or remaining mem-
bers of the Amalgamated, the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent filed an answer, dated February 28, 1938, contest-
ing the Board's jurisdiction of the subject matter, denying that it had
engaged in the alleged unfair labor practices, and stating affirmatively
that it had bargained collectively with the Association which at all
times since May 1, 1937, had represented a majority of its employees.
The Association did not file an answer.
Pursuant to notice, a hearing was held at Waukegan, Illinois, from
February 28 to March 9, 1938, before Henry J. Kent, the Trial Ex-
aminer duly designated by the Board. The Board, the respondent, the
Amalgamated, and the Association were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all the parties.
During the hearing on March 1, 1938, counsel for the Board moved
that the complaint be amended by adding the name of Cassmir
Niemietz to the list of those employees of the respondent allegedly dis-
criminatorily discharged. The Trial Examiner granted this motion.
The ruling is hereby affirmed. At the close of the presentation of the
Board's case and again at the close of the hearing the respondent moved
that the entire amended complaint, and the Association moved that
the allegations of the amended complaint with respect to the forma-
tion of the Association and the domination of its administration by
the respondent, be dismissed, on the ground that the evidence adduced
at the hearing failed to sustain the allegations. The Trial Examiner
reserved rulings on these motions at the hearing and disposed of them
by the findings and recommendations in his Intermediate Report. Dur-
ing the course of the hearing the Trial Examiner made a number of
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed all the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On June 17, 1938, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon all the parties, finding that the
respondent had engaged in and was engaging in unfair , labor- prac-
tices within the meaning of Section 8 (1), (2), and (3) and Section 2
(6) and (7) of the Act. He further found that the respondent had
not engaged in unfair labor practices within the meaning of Section
8 (5) of the Act and had not engaged in unfair labor practices by dis-
charging and refusing to reinstate Cassmir Niemietz and Charles 01-
son. He recommended that the respondent cease and desist from its
unfair labor practices; that it withdraw all recognition from the Asso-
ciation as a representative of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wage`s`, rates
of pay, hours of employment, or conditions of work; and that it offer
full reinstatement with back pay to L. J. Warner, Sr., L. J: Warner,
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 341
Jr., and Frank Jordan. He further recommended that the allegations
of the amended complaint with respect to the discriminatory dis-
charges of Cassmir Niemietz and Charles Olson and with respect to
the refusal to bargain collectively be dismissed.
The respondent and the S. W. O. C. filed exceptions to the Inter-
mediate Report. The respondent also filed a brief in support of its
exceptions. The parties, although accorded an opportunity for oral
argument before the Board, made no request therefor. The Board
has reviewed all the exceptions to the Intermediate Report and, ex-
cept as they are consistent with the findings, conclusions, and order
set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Automotive Maintenance Machinery Company, an Illinois corpora-
tion, is engaged at a manufacturing plant in North Chicago, Illinois,
in the design, production, distribution, and sale of automotive and
garage repair equipment. Its products are used for maintenance and
repair work by garages and service stations. In 1937 the respondent
purchased $51,176.71 of raw materials for use at its plant. Of this
sum, $4,402.43 was spent for materials shipped to the respondent's
plant from points outside the State of Illinois. The total value of
the respondent's products in 1937 was $292,465.73. The value of the
products shipped by the respondent in that year to points outside
the State of Illinois was $277,259.23. On February 18, 1938, the
respondent employed 57 persons at its plant.
II. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is a labor organization affil-
iated with the Committee for Industrial Organization, representing
Amalgamated Association of Iron, Steel & Tin Workers of North
America, Lodge 1744, a labor organization also affiliated, through
the S. W. O. C., with the Committee for Industrial Organization.
The Amalgamated admits to membership all the production and
maintenance employees of the respondent, excluding watchmen and
clerical and supervisory employees.
Ammco Workers Association is an unaffiliated labor organization
incorporated under the laws of the State of Illinois. It admits to
membership all employees of the respondent except foremen and
office employees.
187930-39-vol. 13-23
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Anvm,eo Workers Association
1. The formation and administration of the Association
Late in April 1937, the Amalgamated began an intensive campaign
to obtain members among the respondent's employees. On April
30, 1937, Fred Wacker, president of the respondent, and Maurice
Travis, superintendent of its plant, decided to hold an election
among the employees. Travis, accordingly, that same day sought
out Clarence Maguire, an employee who had already joined the
Amalgamated, and requested him to obtain a secret ballot from each
employee stating his wishes in regard to labor organizations. During
working hours that. day Maguire obtained unsigned, written ballots
from most of the 48 employees in the plant, and together with John
Wallace and Charles Olson, two employees, as well as Travis and
Wacker, counted the ballots and tabulated the results. Fourteen votes
had been cast in favor of an "outside union," and twenty-nine in_
favor of an "inside union." A short time after the ballots had been
counted, several employees asked Travis for permission to hold a
meeting in the plant that afternoon. The employees also requested
Travis to shut down the plant at 4 o'clock that afternoon, instead of
the usual hour of a quarter to five, in order to allow them to attend
the meeting and also catch, as usual, a 5 o'clock suburban train home.
Travis consulted Wacker, who granted these requests. When. a few
days later, Travis asked Wacker if the employees should be paid for
the 45 minutes they had thus lost from their work, Wacker replied
that they should, and the employees were paid.
Substantially all the employees attended the meeting. Charles
McParland, an employee, in accordance with a request previously
made to him by Wallace and Maguire, presided. The employees
present elected three of their number-Wallace, McParland, and
George Thomasma-as a committee to present their demands con-
cerning wages, hours, and working conditions to the respondent. The
next morning, McParland gave Wacker a letter, signed by the three
committee members, informing Wacker that at a meeting held the
previous day the "Ammco workers" had decided that the Association
should be organized to bargain with the respondent concerning
wages, hours, and conditions of work, had elected a committee of
three to represent them, and now requested a meeting between this
committee and the respondent. A few hours later Wacker gave
McParland a letter addressed to the committee stating that he v, as
"very much pleased" with the organization of the Association and the-
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 343
committee and with the action the Association had taken at its first
meeting; that he desired to thank the employees for the manner in
which they had conducted themselves during "the recent difficult
months"; that he pledged his word that no attempt would "be made
by the management at any time to influence the action" of the Asso-
ciation except "through discussion and negotiation" with the com-
mittee; that he, Travis, and Zimmerman, the chief engineer, would
meet the committee at its convenience; and that he personally looked
"forward with anticipation and pleasure to a closer and friendly
relationship with the Aminco Workers Association and its good com-
mittee for the best interests of all concerned." At a meeting of the
employees held in the plant that same day at noon, McParland read
these two letters to all present. On the afternoon of May 3, the em-
ployees' committee met with Wacker, Travis, and Zimmerman for
about 3 hours, discussed with them the demands of the employees
concerning wages and hours of work, and requested that the respond-
ent enter into a written contract with them. The following day at
noon in the plant the employees held a third meeting at which they
elected temporary officers, including McParland as secretary,
adopted the name of Ammco Workers Association, previously used in
the committee's letter to Wacker, and decided that weekly dues
amounting to 25 cents should be paid by each member. The com-
mittee reported on its conference the previous day with the respond-
ent's officers, and the employees decided to seek a closed-shop agree-
ment with the respondent. By May 12, Association membership
applications and cards had been printed, and on that day all but one
of the 46 employees actually working in the plant joined the
Association.
Inasmuch as Wacker during ' the May 3 conference had told the
committee that the respondent would never enter into an agreement
with an unincorporated labor organization, on May 25, 1937, McPar-
land, having previously obtained permission from F. C. Westphal,
treasurer of the respondent, to be absent for a day from his work for
that purpose, went to Springfield, Illinois, and obtained a corporate
charter for the Association, the fee for which was paid by the Asso-
ciation. Subsequently, Westphal asked Wacker if McParland should
be paid for the day he had spent at Springfield on Association busi-
ness ; Wacker replied that McParland should, and McParland was
paid.
On July 1, 1937, the Association for the first time held a meeting
off the respondent's property, at which permanent officers were elected'
and bylaws were adopted. During the following 4 months the Asso-
ciation and the respondent negotiated concerning the terms of a.
written contract, but not until November 15, 1937, was an agreement
signed for the following year. The agreement made membership in
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Association a prerequisite to employment by the respondent and
designated the Association as the sole bargaining agency for all the
respondent's employees.
2. The relationship between the Association and the respondent
Travis constantly revealed to the employees his bitter hostility to-
ward the Amalgamated and, from the time of the inception of the
Association, his friendliness toward that organization. Karl Streed,
an Association witness, testified that some time prior to the election
of April 30, Travis asked him if he "had anything to do with the
C. I. 0."; that he admitted that he had; and that Travis then curtly
observed that he, Travis, did not want "any outsiders running the
shop." Frank Jordan, an employee who joined the Association after
he had joined the Amalgamated, testified that he overheard Travis
thus question Streed about the Amalgamated, that Travis also asked
him if he had joined, the Amalgamated, and that Travis told him
and Streed : "The C. I. 0. is not getting in here, I want you to know
that." Similarly, Maguire, an Association witness, testified that
on April 29, the day he joined the Amalgamated, Travis asked him
if he belonged to that organization. Travis denied this testimony
of Streed, Jordan, and Maguire.
LeRoy Warner, Sr., an employee who joined the Amalgamated,
testified that immediately after the results of the election had become
known on April 30, Travis laughingly remarked to him : "Your
C. I. 0. didn't get in here after all, did it"; that he replied: "What
do these kids around here know about unionism anyway"; and that
Travis angrily retorted : "I would like to see you or anybody else
teach them anything any different." Travis denied the testimony
of Warner, but admitted that he did tell Warner at this time, when
he observed that the outcome of the election had upset Warner : "I
guess you can't take it."
John Duick and Bruno Rice, employees who were witnesses for the
Association, testified that during the first week in May, Travis asked
them if they belonged to the Amalgamated. Duick, although he was
an Amalgamated member, testified that he denied his membership;
Rice testified that he admitted his membership. Travis denied mak-
ing these inquiries.
Jerome Milkik, an Association witness, testified that Travis told
him that "he didn't . . . like the C. I. 0." Travis denied making
this statement. Charles Fagan, an Association witness, testified that
about this time Travis told him : "I heard Pop Warner [Warner Sr.]
went out soliciting [for the Amalgamated] the other day, well you are
in the bag" [referring to Fagan's participation in the Association's
organization]. Travis denied this testimony. Cassmir Niemietz, an
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 345
employee, testified that on May 7, Travis asked him if either Warner,
Sr., or his son, LeRoy Warner, Jr., also an employee, had spoken to
him, Niemietz, about "the C. I. 0." Travis denied so questioning
Niemietz. Warner, Jr. testified that on May 8, the day after his father
had been discharged by the respondent,' Travis told him : "I want
you to get the C. I. 0. out of your noodle, we have a shop union here
and all of the boys are satisfied ; if you stick with us, you will have
more money and you will have a better job." Travis admitted talking
to Warner, Jr. on this day about his job and his father's discharge,
but denied making the above remarks.
George Daum, an employee, testified that shortly after a committee
of employees had asked Travis on May 21, 1937, to arrange a meeting
between the respondent and an Amalgamated bargaining committee,
Travis "bawled out" Daum for being a member of this committee,
told him that "it [the C. I. 0.] wouldn't get me [Daum] anywhere,"
and heatedly remarked : "What are you fellows trying to do, make
a football out of me; you say one thing and do another ... I thought
you were satisfied with the company union; what do you fellows think
this is, a circus or something; to hell with the C. I. 0.; you can go on
strike, sit down, or do anything else you like ... regardless of what
you do, the C. I. 0. will never get any place in this plant." Travis
testified that at this time he merely told Daum : "What I wanted done
was for the people to go back to work; that the thing was all over;
that I wanted them to quit making a football of me around the fac-
tory . . . not obeying orders and standing around and not getting
out no work." Similarly, although denying that he ever questioned
any employee about his membership in the Amalgamated, Travis ad-
mitted that after the election on April 30, he spoke to several em-
ployees, including Streed and Fagan, and told them : "There has been
a vote here and I would like to have the boys abide by it and go to
work." Travis also testified :
Q. After that vote [of April 30] was taken, it was your
position that the men ought to go along and abide by the
majority vote?
A. Naturally I would assume that, yes.
Q. And you undoubtedly expressed that position to the various
men you spoke to?
A. Yes, I would. I would express that ...
Travis' admitted requests to the employees to abide by the results
of the election clearly implied that the employees should abandon
the Amalgamated.
Travis was in the respondent's employ from August 1935 until
September 1937, when he resigned. At the time of the hearing, he
'See Section III, C, infra.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was employed elsewhere. As we have pointed out above, he denied
much of the anti-Amalgamated activity attributed to him by wit-
nesses for the Board or the Association. His testimony denying
such activity is evasive and unsatisfactory. In many cases he partially
admitted that he participated in it. The testimony concerning such
activity by him, given in the majority of cases by witnesses for the
Association, is consistent and abundant. In view of all these cir-
cumstances, we give no credence to Travis' denials and find, in
every instance previously set forth, that he made the statements
attributed to him by the witnesses for the Board or the Association.
Wacker and Travis both testified that in April Wacker advised
Travis to remain neutral and avoid putting pressure on any group of
employees. It is clear, however, that Travis, by his own admissions,
disregarded such orders. Wacker also informed Travis and the
Association committee in the May 3 and subsequent conferences
that no employee's job depended on what labor organization he
belonged to, and that the employees were free to join any labor
organization they wished. Travis' activity overwhelmingly dissi-
pated the effect, if any, of these remarks of Wacker.
Travis and Wacker both testified that during April 1937 they
observed much unrest and agitation among the employees, which, in
view of the recent events at the nearby plant of the Fansteel Metal-
lurgical Corporation,2 they attributed to discussions and disputes
among the employees concerning labor organizations; and that they
held the election on April 30, 1937, in order to avoid the occurrence at
their plant of incidents similar to those which had taken place at the
Fansteel plant, and to dispel this unrest among the employees, which
they believed was the cause of a sharp decline in the production of
their plant. Irrespective of the respondent's motives for holding the
election, however, there can be no question that this act of the re-
spondent gave immediate and decisive impetus to the formation of
the Association. There is no evidence that the employees had taken
any steps to organize the Association or any other labor organiza-
tion restricting its membership to employees of the respondent, prior
to the dissemination of this idea by the respondent through the
medium of the election and of the question there propounded.° On
the other hand, before the election had been held, Travis by his re-
2 Described in Matter of Fansteel Metallurgical Corporation and Amalgamated Associa-
tion of Iron, Steel and Tin Workers of North America, Local No. 66, 5 N L R B. 930
3 Wacker testified that he left all details of the election, including the exact nature of
the question to be voted upon by the employees, to Travis' discretion Travis testified
that he did not tell Maguire what to say to the employees Travis did not, however,
specifically testify whether or not he told Maguire to make the ballot a choice between an
"inside" and an "outside" union. Maguire, a witness for the Association, testified that
Travis told him to ask the employees to vote for either an "inside" or an "outside" union.
Under these circumstances, we are of the opinion and we find that Maguire's testimony is
to be credited.
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 347
anarks to Jordan, Streed , and Maguire, had shown his hostility toward
the Amalgamated . And we have repeatedly pointed but, in con-
demning elections held by an employer ,4 that our- experience has
shown that the sponsorship of the election by the employer, the
holding of it in his plant during the customary working hours with
supervisory officials , such as Travis, present, and the possibility,
doubtless known to the employees, of hidden identification marks on
the ballots , especially if as in the present case the ballots are un-
printed, can cause employees to vote as they believe the employer
wishes. The holding of such an election , therefore , after Travis had
indicated the respondent 's wishes by his remarks , not only interfered
with the rights of the employees guaranteed in Section 7 of the Act
but also dealt a strong blow to the organizing efforts of the Amalga-
mated and gave the powerful initial impulse for the formation of
the Association.
During the first 2 or 3 weeks of May 1937 , after the election, both
the Amalgamated and the Association were campaigning vigorously
for members among the respondent 's employees . Twenty-two of the
employees joined both organizations at this time . Many of them did
so, according to their testimony , in order to defer any choice between
the rival unions until it was apparent which finally , won the right
to represent the respondent 's employees . During this crucial period
of struggle between the opposing organizations , Travis' persistent
questioning of employees concerning their affiliation with the Amal-
gamated , his vigorous statements that the Amalgamated would never
be successful in its activities in the respondent 's plant, and his many
remarks that the Association was the organization that the employees
were expected to join, constituted open support and domination of
and interference with the formation and administration of the Asso-
ciation. In addition , the respondent at this time directly supported
and assisted the Association by allowing it to hold all its meetings
free of charge on the respondent 's property , by paying the employees
their full wages for the time they spent at the initial meeting to
organize the Association , and by paying McParland his full wages
for the day he spent in Springfield transacting business of the Asso-
ciation. Wacker and Travis testified that such support was given in
order to hasten the disappearance of unrest and agitation among the
employees . Whatever may have been the motive of the respondent
for furnishing such support , such actions by the respondent must
have indicated to the employees , who were hesitating between choos-
ing the Association or the Amalgamated as their representatives,
4 Matter o f Northrop Corporation and United Automobile Workers, Local No. 229, 3
N. L. R B. 228, 234; Matter of The Heller Brothers Company of Newcomerstown and
International Brotherhood of Blacksmiths , Drop Forgers, and Helpers, 7 N. L. R. B. 646,
657, Cf. Matter of J. Wiss & Sons Company and United Electrical , Radio & Machine
Workers of America, 12 N. L R. B. 601.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the respondent not only was very friendly toward the Associa-
tion, in sharp contrast with its outspoken hostility toward the Amal-
gamated as revealed in Travis' conduct, but also was willing to confer
favors upon the Association and materially assist it. In addition,
Travis' treatment of the Amalgamated bargaining committee on May
21 and 22, when it sought a meeting with the respondent, as herein-
after described 5 and as indicated by the tenor of his previously
quoted remarks to Daum, when contrasted with Wacker's friendli-
ness at all times toward the Association's bargaining committee,
showed the employees which of these two organiztions the respondent
approved.
Wacker, in his conferences with the Amalgamated representatives
from the end of May through August 1937, repeatedly asserted that
he could not bargain collectively with the Amalgamated or recognize
it as a bargaining agency for his employees because the respondent
already had a written agreement with the Association recognizing it
as the sole bargaining agency for the employees. Thus in a letter of
August 20, 1937, to Oakley Mills, a representative of the S. W. O. C.,
Wacker wrote :
I can only repeat, as I have frequently stated to you in the
past, several times in the presence of Mr. Bajork [the Regional
Director], that we have bargained collectively with our men who
organized and incorporated the Ammco Workers Association
with whom we entered into a written agreement prior to the
time that we received any word or communication from you with
respect to bargaining with your lodge No. 1744.
In our agreement with the Ammco Workers Association we
recognized them as the exclusive bargaining agency for this
company; obviously we are neither able nor willing to break
a contractual obligation of this nature.
At the hearing, when the evidence revealed that the written
agreement between the respondent and the Association recognizing
the Association as the sole bargaining agency for the employees was
not signed until November 15, 1937, several months subsequent to the
date of the above letter, Wacker testified that he had meant that the
letters exchanged between him and the Association's committee on
May 1, 1937, constituted this supposed written agreement, which he
described as one to "recognize the majority vote." If the respondent
had not recognized the Association as the sole collective bargaining
agency for its employees," its statements in the above-quoted letter
were misrepresentations which undoubtedly gave substantial support
See Section III, C, infra.
The respondent's exceptions to the Trial Examiner 's Intermediate Report contain this
statement : "The respondent in that letter [of May 1, 1937 ] did not agree to deal only
with this committee [of the Association]."
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 349
to the Association. On the other hand, if the respondent's May I
letter be interpreted as granting recognition to the Association as the
sole bargaining agency for its employees, such an interpretation
requires the conclusion that Wacker took this far-reaching step within
a very few hours after he was requested to do so, without conferring
with any of his employees or with the Association committee, and
before the Association had acquired officers or bylaws, or established
dues. Such hasty recognition of a virtually unorganized employee
group, with no investigation of the extent of its membership, would
evidence a desire to assist the Association. We need not determine
the presence or absence of good faith on the respondent's part, in
making the statements under consideration. Either alternative sup-
ports our finding that the respondent actively favored the Associa-
tion and as actively opposed the Amalgamated.
We find that the respondent has dominated and interfered with
the formation and administration of the Association and contributed
support to it.
We find that the respondent, by the acts and conduct set forth in
the preceding paragraph and by other acts and conduct set forth
above, including the interrogation of its employees concerning their
activity for, and affiliation with, the Amalgamated, has interfered
with, restrained, and coerced its employees in the exercise of their
rights to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
mutual aid and protection as guaranteed in Section 7 of the Act.
B. The refusal to bargain collectively
1. The appropriate unit
The amended complaint alleged, and at the hearing the Amalga-
mated asserted, that all the production and maintenance employees
of the respondent, excluding watchmen and clerical and supervisory
employees, constitute a unit appropriate for the purposes of collective
bargaining. The respondent, apparently, did not question the appro-
priateness of the unit proposed by the Amalgamated except in regard
to the exclusion of watchmen. In accordance with our usual practice,
we shall exclude watchmen from the appropriate unit at the request of
the only labor organization entitled to participate in the determina-
tion of the bargaining unit.'
'7 Matter of Plankington Packing Company and Packing House Workers Organizing Com-
mittee on behalf of Local 681 of the United Packing House Workers of America, 5 N. L.
R. B. 813, 816 , and decisions therein cited ; Matter of Southern California Gas Company
and Utility Workers Organizing Committee, Local No. 132, 10 N. L. it. B. 1123.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, the Amalgamated contended that the work of three
of the respondent's employees-William Krause, Allen Irwin, and
Myron Steinback-was of such a nature as to exclude them from the
appropriate bargaining unit. The respondent opposed the exclusion
of these three employees from the appropriate unit. Krause, in addi-
tion to working as a carpenter in the plant, for extra compensation
acts as a watchman for 21/4 hours each evening and on Saturday after-
noons and Sundays, when the other production and maintenance em-
ployees normally are not working in the plant. Because of Krause's
duties as a watchman, we shall exclude him from the appropriate bar-
gaining unit, in accordance with the wishes of the only labor organiza-
tion entitled to participate in the determination of that unit. Irwin
and Steinback are "set up men." They have no authority to discipline,
hire, or discharge employees, or to initiate such action. They set up
and prepare the machines for other and less experienced production
employees in their departments, assist them with their work, and
occasionally inspect or check it. Often they transmit orders from
supervisory officials to other employees, assigning them to certain tasks.
Neither Irwin nor Steinback has ever been a member of. the Amalga-
mated, and the evidence indicates that they are ineligible for member-
ship. Following our previous decisions 8 we find that the supervisory
functions of Steinback and Irwin warrant their exclusion from the
appropriate bargaining unit, in accordance with the desires of the
only labor organization entitled to participate in the determination of
that unit.
We find that all the production and maintenance employees of the
respondent, excluding watchmen (including William Krause) and
supervisory and clerical employees (including Myron Steinback and
Allen Irwin), constitute a unit appropriate for the purposes of col-
lective bargaining with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and that said unit
insures to employees of the respondent the full benefit of their rights
to self-organization and to collective bargaining and otherwise effec-
tuates the policies of the Act.
2. Representation by the Amalgamated of the majority in the
appropriate unit
The amended complaint alleged, and the evidence showed, that on
or about May 7, 1937, the Amalgamated first attempted to bargain
collectively with the respondent. At the hearing, the Amalgamated
presented twenty-four signed membership application cards. The
8 Matter of May Knitting Company, Inc . and United Wholesale and Warehouse Em-
ployees of New York, Local No. 65, C. I. 0., 11 N. L R. B. 772, and decisions therein cited.
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 351
respondent and the Association had full opportunity at the hearing
to inspect these cards. Neither in any way challenged the authenticity
of the signatures. All these cards are signed by employees whose
names are on the pay roll of the respondent for May 1, 1937. Twenty-
two of these cards bear a date prior to May 7, 1937. According to the
respondent's pay roll for May 1, 1937, there were 48 employees at its
plant. Of these 48 employees, all but 4-William Krause, Allen
Irwin, Myron Steinback, and James Lewis a-are in the bargaining
unit we have found to be appropriate. On May 7, 1937, two em-
ployees, LeRoy Warner, Sr. and Alexander Merzejewski, whose names
appear on the pay roll and who had previously signed Amalgamated
membership application cards, were permanently discharged. There
is no allegation in the amended complaint or evidence that Merze-
jewski was discriminatorily discharged. Since the complaint alleges,
and we subsequently find, that Warner, Sr. was discriminatorily dis-
charged, he remained an employee of the respondent within the mean-
ing of Section 2 (3) of the Act. Inasmuch as the evidence shows
that on May 7, 1937, only 21 of the 43 employees of the respondent
in the appropriate bargaining unit had signed Amalgamated mem-
bership application cards, on that clay the Amalgamated did not
represent the majority of employees in the appropriate unit.
On May 29, 1937, the Amalgamated again attempted to bargain
collectively with the respondent . All 24 of the Amalgamated's mem-
bership application cards bear a date prior to May 29. Between May
7 and 29, the respondent hired one new employee, Melvin Krause,
who is in the appropriate unit. During this period, two employees,
LeRoy Warner , Jr. and Frank Jordan, were discharged . Inasmuch
as the complaint alleges and we subsequently find that both these
men were discriminatorily discharged , they remained employees of
the respondent within the meaning of Section 2 ( 3) of the Act.
Thus, of the 44 employees in the appropriate unit on May 29, 1937,
23 had previously signed Amalgamated membership application
cards. Two employees , Clarence Maguire and Howard Waterman,
whose Amalgamated cards are dated April 29, 1937, testified that the
next day they voted for an "inside union" in the election. On the
other hand, 2 employees , Emil Dyke and Walter Dietz, both of whom
testified that they voted for an "inside union" on April 30, subse-
quently signed Amalgamated cards dated respectively May 4 and 10.10
Such evidence shows that the desires of the employees concerning
membership in the Amalgamated were very unstable during this
period. In view of this fact , under the circumstances of this case
9 Lewis is the nieht watchman at the respondent's plant.
10 Dietz also testified that shortly before the election of April 30, he was asked to sign
an Amalzamated membership card by Fagan, an employee, and that he did so, but that a
few hours later, at his request, Fagan returned this card to him.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where the Amalgamated at most would have a majority of but one,
we are unable to find that on May 29, 1937 , the Amalgamated repre-
sented a majority of employees in the appropriate unit. The
amended complaint also alleged, and the evidence showed, that on
August 11 and 20, 1937, the Amalgamated attempted to bargain
collectively with the respondent. From August 1 to 12, of 41 em-
ployees in the appropriate unit, 21 had signed Amalgamated mem-
bership application cards . For reasons set forth above in connection
with the May 29 bargaining, we are unable to find that the Amalga•
mated , on the basis of this evidence , represented a majority of em-
ployees in the appropriate unit on August 11, 1937. From August
12 to 20, 20 of 40 employees in the bargaining unit, and from August
20 to September 1, only 18 of 37 employees in the appropriate unit,
had signed Amalgamated membership application cards . There is
some evidence that the Amalgamated sought to bargain collectively
with the respondent during September 1937. Until September 14,
of the 36 employees in the appropriate unit, only 18 had signed
Amalgamated membership application cards . After September 14,
there were 37 employees in the appropriate unit , of whom 18 only
had signed Amalgamated membership application cards. There is
no evidence of any attempt by the Amalgamated subsequent to Sep-
tember 1937, to bargain collectively with the respondent.
In view of the foregoing evidence, we are unable to find that the
Amalgamated at any time when it sought to bargain collectively with
the respondent represented the majority of the employees in the appro-
priate unit. It is therefore unnecessary for us to determine whether
or not the respondent refused, upon demand, to bargain collectively
with the Amalgamated as the exclusive representative of the em-
ployees in a unit appropriate for the purposes of collective bargaining.
We find that the evidence fails to sustain the allegations of the
amended complaint to the effect that the respondent refused to bargain
collectively with the Amalgamated as the representative of a majority
of the respondent's employees in a unit appropriate for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment. Such allegations
of the amended complaint will, therefore, be dismissed.
C. The discharges
LeRoy Warner, Sr., who has 35 years' experience as a machinist and
toolmaker, worked in this capacity for the respondent from January
1935 until he was discharged on May 7, 1937. Travis testified that
Warner was a good toolmaker. Warner began working for the re-
spondent for 65 cents an hour, and was earning 80 cents an hour at
the time of his discharge. About a month before May 7, 1937,
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 353
Warner's wages were increased . Travis testified without contradic-
tion that this wage increase was a plant-wide one.
Warner joined the Amalgamated on May 2, 1937. Both Travis
and Wacker admitted that they knew or strongly suspected not only
that Warner was a member of the Amalgamated or some similar labor
organization , but also that he was extremely active in discussing and
soliciting for his labor organization among the employees . In fact,
Wacker testified that when he first observed the unrest among the
employees early in April , he particularly noticed the activity of
Warner and spoke to Travis about it. Travis' conversation with
Warner after the ballot of April 30 , above set forth ,11 clearly shows
Travis' knowledge of Warner 's activity for and sympathy with the
Amalgamated.
The respondent asserts that Warner was discharged on May 7,
1937 , because of his persistent solicitation of members for the Amal-
gamated in the plant during working hours, in spite of repeated
orders to him to cease such activity because the quantity and quality
of his work was thereby impaired. Wacker testified that about 2
months before Warner's discharge , Zimmerman , the chief engineer,
complained about Warner's slowness and asked that Warner be re-
placed, but that he ordered Travis merely to caution Warner; that in
April, when he frequently observed that Warner was "visiting"
during working hours, he again told Travis to caution Warner ; that
on May 7, 1937, he twice saw Warner "visiting" and ordered Travis
to warn Warner not to talk "union" or solicit for "union member-
ships" or anything else while at work; and that when he saw Warner
"visiting" for the third time on May 7 , he ordered Travis to dis-
charge him . Travis corroborated Wacker's testimony and in addi-
tion claimed that on May 6 he, had sharply rebuked Warner for
breaking two tools and taking an unusually long time to complete
a certain lot of work . John Wallace, an employee, testified that
he often saw Warner speaking to employees around the plant while
they were working; that twice he saw Travis warn Warner not to
continue such activity ; and that shortly after Travis discharged
Warner, he overheard Warner threaten to "get even" with Travis.
Oakley Mills, a representative of the S. W. O. C ., testified that when
he conferred with Travis shortly after Warner 's discharge , Travis
stated that Warner was discharged because he refused to remain on
his job and consequently did very little, and inferior, work.
The respondent offered no records or other evidence to support
the statements of Wacker and Travis that the quality and quantity
of Warner 's work decreased during April 1937. Warner denied
ever receiving any reprimands concerning his work. Moreover,
11 See Section III, A, 2, supra.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warner testified, and Wallace corroborated his testimony, that his
work necessitated his frequently going to the machines of the other
employees in his department and in the other departments in order
to obtain the proper tools to perform the tasks assigned to him.
In addition, Warner testified, and Travis did not deny, that at
Travis' express request he often aided the younger employees in his
department by checking their work and sharpening their drills.
There is no evidence to indicate that when Zimmerman, Travis,
Wacker, and Wallace, allegedly saw Warner "visiting," Warner was
discussing the Amalgamated and not either helping younger em-
ployees with their work or obtaining tools for his own work. Twelve
employees were asked at the hearing who had urged them to join,
or talked to them about, the Amalgamated. Not one testified that
Warner engaged in such activity in the plant during working hours
or at any other time. Moreover, the fact that Warner participated
in a plant-wide wage raise at the very time Travis, Zimmerman,
and Wacker allegedly were frequently rebuking him for inferior
work, casts great doubt on whether his work was inferior and
-whether he was in fact being reprimanded therefor.
The respondent, during the entire week prior to Warner's discharge,
permitted the Association to hold several meetings in the plant and
on one occasion paid its employees for the time spent at such a meet-
ing. Thus, accepting, arguendo, the respondent's contention that
Warner's activity on behalf of the Amalgamated occurred in the
plant during working time, and interfered with his work, we are
nevertheless forced to conclude that the respondent discharged him
because he was acting for the Amalgamated rather than for the Asso-
ciation.12 But we also are of the opinion that the evidence does not
sustain the respondent's assertion that Warner solicited members for
the Amalgamated in the plant during working hours, or that Warner's
work lessened in quality and quantity prior to his discharge.
Events subsequent to the discharge confirm us in our conclusion that
it was caused by Warner's advocacy of the Amalgamated. Warner
testified that in the middle of August Travis informed him that he
would have to "square" himself "with the Manufacturer's Associa-
tion . . . you know they have records of all this stuff"; and that
Travis also told him : "You must remember you are getting grey hairs
in your head, you shouldn't be running around and joining in this
here union stuff; you had a good job down there and you could come
home for lunch every day ; what the hell better did you want." Travis,
12 Cf Matter of American Potash & Chemical Corporation and Borax & Potash Workers'
Union No. 20181, 3 N. L. R . B. 140, order enforced , American Potash and Chemical Cor-
poration V National Labor Relations Board , 98 F (2d ) 488 (C. C. A. 9th 1938 ) ; Matter
of Botany Worsted Mills and Textile Workers Organizing Committee, 4 N. L. R. B. 292.
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 355
after first admitting that in this conversation he had told Warner
that he thought Warner had "made a mistake" in joining the Amal-
gamated, subsequently retracted this admission and denied all of
Warner's testimony. We give no credit to such a denial by Travis,
and find that he made the statements attributed to him by Warner.
We find that the respondent discharged Warner because of his
union membership and activity. The respondent, by discharging
Warner, discriminated in regard to his hire and tenure of employ-
ment, thereby discouraging membership in a labor organization, and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act.
From July 30, 1937 until December 10, 1937, Warner worked as a
machinist and toolmaker at a wage of 80 cents an hour for the Wau-
kegan Tool & Die Works and earned $504.42. Since December 10,
1937, Warner has been unemployed, and he desires to return to his
former position in the employ of the respondent. The respondent con-
tends that Warner obtained substantially equivalent employment else-
where and, therefore, lost his status as an employee of the respondent.
Although we do not concede that the obtaining of other regular and
substantially equivalent employment would deprive the Board of
power to reinstate an individual who had been discharged for union
activity, it should be noted that Warner was not employed at the time
of the hearing. We find that, since Warner had been employed else-
where for only 5 months, since he was not employed at the time of the
hearing, and since he desired to be reinstated by the respondent, he
had not obtained regular and substantially equivalent employment
and did not lose his status as an employee of the respondent 13
LeRoy Varner, Jr. and Frank Jordan. Warner, Jr. worked for the
respondent from January 1937 until his discharge on May 22, 1937.
Jordan worked for the respondent from February 1937 until his dis-
charge on May 22, 1937. Both Jordan and Warner, Jr. joined the
Amalgamated on May 2, 1937.
On May 21, 1937, a committee of 10 employees, all Amalgamated
members, led by Milkik, and including Jordan and Warner, Jr., asked
Travis to arrange for a meeting of the committee and Mills, a repre-
sentative for the S. W. O. C., with the respondent for the purpose of
collective bargaining between the respondent and the Amalgamated.
'Travis, Milkik, and Edward Wiater, a committeeman, testified that,
although the committee asked for a meeting at 2 o'clock the next day,
>aCf Matter of Botany Worsted Mills and Textile Workers Organizing Committee, 4
N. L. R B . 292, 304; Matter of The Kelly - rprtingfield Tire Company and United Rubber
Workers of America, Local No. 26, and James M. Reed and Minntie Rank, 6 N. L R. B.
325, 349; Matter of Pulaski Veneer Corporation and United Brotherhood of Carpenters &
Joiners of America, Local Union # 1862, 10 N L. It. B. 136, Matter of Fanny Farmer
Candy Shops , Inc. and Committee for Industrial Organization , 10 N. L. R. B. 288.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Travis refused to set a definite hour for any meeting because Wacker
was then out of the city. However, in accordance with their testimony,
we find that five members of the committee, namely-Jordan, Warner,
Jr., Rice, Daum, and Olson-understood that Travis definitely ar-
ranged for such a meeting at 2 o'clock the next afternoon.
Later that afternoon Travis telephoned Wacker, who informed
Travis that he would be unable to return to the plant for any con-
ference the next day. That same evening, Mills was informed by
the committee that the meeting would take place at 2 o'clock the,
following day. On the morning of that day, Mills telephoned Travis
to make certain of the hour of the conference. Mills testified that
Travis told- him that "the meeting is off"; and that he informed
Travis that unless notified to the contrary by the committee, he,
would nevertheless be at the plant at 2 o'clock, because in many
instances such a cancelation of a conference "was a trick between.
the management and the representative to discourage the Union,
and then claim that the Union officials broke the date." Travis
admitted having this conversation with Mills, but denied that Mills
stated that, in spite of the cancelation, he would come to the plant
for the conference. The unreliability of Travis' testimony concerning
previously discussed incidents'14 induces us to give no credence to his
denial and find that Mills' version of their telephone conversation is
accurate.
Travis testified that that morning at the plant before speaking to
Mills he told Olson, Warner Jr., and Jordan that the meeting
scheduled for that afternoon had been canceled, because Wacker
could not be present. Travis also testified that after speaking with
Mills, he informed these three employees that he had told Mills that
the conference had been called off. Jordan denied that Travis ever
informed him of any conversation with Mills. Warner Jr. and
Olson testified that Travis told them only that the meeting would
not be held. The unreliability of Travis' testimony concerning other
incidents, 15 leads us to find that Travis did not inform these three
employees of his conversation with Mills.
Shortly before 2 o'clock that afternoon Jordan and Warner, Jr.
left their machines on the second floor of the plant and proceeded
to an entrance on the first floor to meet Mills, who, so far as they
knew, wa§ unaware of the cancelation of the conference and was
coming to the plant for it. Mills, in accordance with his telephone
conversation with Travis, had arrived at the plant for the confer-
ence, and was standing outside its plate-glass door, which was locked.
14 See Section III, A , 2, supra.
15 See Section III, A, 2, supra
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 357
The two employees, upon seeing Mills, partially opened the door to,
admit him, but immediately returned to their work on the, second!
floor at the orders of Krause, the watchman, who pushed then aside.
and closed the door in Mills' face. Mills and Travis then engaged
in a short but heated discussion through the door, Travis shouting-
that "no coal miner" [Mills had formerly been connected with that
industry] would tell him how "to run his plant." Mills then de-
parted, and a short time later Travis discharged both Jordan and
Warner. Travis claimed that he discharged both men solely because
they had disobeyed his orders by leaving their machines and going-
to the door to meet and admit Mills. Travis admitted that he had
not forbidden the men specifically to take such action, but asserted
that such an order was implied in his statements to them that the-
meeting had been canceled. We are unable to concur in this view.-
In any event, it is significant that when the men for the first time
received an explicit order not to meet Mills, when Krause told them
to return to their work, they instantly obeyed.. The two employees-
lost but a few minutes from their work; Travis' alleged orders to
them not to meet Mills were, to say the least, far from explicit; and
the arrangements for the meeting and its subsequent cancelation,
were the subject of considerable misunderstanding among the parties.
concerned. In view of these facts indicating that the penalty im-
posed on Jordan and Warner, Jr. was grossly out of proportion to-
their alleged offense, if any, and in view of Travis' intense resent-
ment and hostility toward the Amalgamated committee as revealed.
in his previously quoted remarks to Daum a few hours before the=
discharge of Jordan and Warner, Jr .,1.6 we are convinced that
Warner, Jr. and Jordan were discharged not because they dis-
obeyed alleged orders of Travis, but because their purported dis-
obedience involved activity by them on behalf of the Amalgamated.
We find that the respondent discharged Warner, Jr. and Jordan
because of their union membership and activity. The respondent,
by discharging Warner, Jr. and Jordan, discriminated in regard to
hire and tenure of employment, thereby discouraging membership
in a labor organization, and interfering with, restraining, and co-
ercing its employees in the exercise of the rights guaranteed them in
Section 7 of the Act.
Both Warner, Jr. and Jordan, neither of whom has obtained regu-
:lar and substantially equivalent employment elsewhere, desire to
return to their former positions in the employ of the respondent.
Cassmir Niemietz. Niemietz was employed by the respondent as
an assembler from January 1937 until July 30, 1937. He had had no
'^ See Section III, A, 2, supra.
187930-39-vol . 13--24
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experience as an assembler prior to his employment by the
respondent.
Niemietz joined the Amalgamated on May 1, 1937, but was never
an officer of it or prominent in its activities. The evidence is con-
flicting as to whether or not Travis knew of Niemietz's affiliation
with the Amalgamated.
On July 30, 1937, Travis laid off Niemietz, telling him that the
reason therefor was lack of work. Subsequently, on several occasions
Niemietz applied for reinstatement, but each time was informed by
the respondent's officials that work was still lacking. Travis testified
that Niemietz was laid off for lack of work strictly in accordance with
his seniority. Including Niemietz, 9 employees were laid off by the
respondent during July 1937; Niemietz was the only 1 of these 9 who
belonged to the Amalgamated. Only two of these nine, all of whom,
according to Niemietz's testimony, were senior to him, have been re-
hired by the respondent. Niemietz testified, and Travis denied, that
sometime between April and June 1937, Travis told him : "If you
join our company union you will have a steady job and you will get
an increase in your wages." In view of the fact that Niemietz did
join the Association in May, even if Travis made such remarks, they
reveal no motive for discriminatorily discharging Niemietz.
The evidence does not support the allegations of the complaint,
as amended, that the respondent discharged Niemietz for union mem-
bership or activity. The allegations of the complaint, as amended,
with regard to the discharge of Niemietz will be dismissed.
Charles Olson. Olson worked for the respondent as a lathe hand
and machinist from January 1937 until August 20, 1937.
Olson was president of the Amalgamated and a member of the
Amalgamated committee which saw Travis on May 21, 1937.
Travis testified that he laid off Olson on August 20, 1937, because
the work Olson was doing had "run out." Olson testified that
Travis informed him that he was being laid off for lack of work.
Although several employees junior to Olson were not then laid off,
'Olson testified that all of them were assemblers and that none of
them did his type of work.
Warner, Sr. testified that in August 1937, Travis told him: "Every-
one of them, all the C. I. O.'s, are out of there now anyway except
Charlie Olson, and he is the next one on the list to get the hell out
of there. Then they will all be out." Jordan testified that about
the same time Travis remarked to him : "He [Travis] was getting
all the C. I. O. men out of there, the faction, so with the Company
union we have got a fine shop here, and Olson was the next one to
go." Travis denied so speaking to Jordan or Warner.
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 359
By the end of May the Amalgamated had completely ceased its
.organizing campaign at the respondent's plant. The record reveals
no reason why the respondent 2 months later should attack the Amal-
gamated by discharging Olson. Since, at the date of the hearing,
16 of the 24 employees who had signed Amalgamated membership
application cards were still employed by the respondent, it is clear
that the respondent had not attempted to discharge all Amalgamated
members, as the remarks attributed to Travis would indicate.
The evidence, although not free from doubt, does not support the
allegations of the amended complaint that the respondent discharged
Olson for union membership or activity. The allegations of the
amended complaint with respect to the discharge of Olson will be,
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occuring in connection with the operations' of respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act and to restore, as nearly as possible, the situation that existed
prior to the commission of the unfair labor practices.
We have found that the respondent has dominated and interfered
with the formation and administration of Ammco Workers Associa-
tion and has contributed support to it. In order to effectuate the
policies of the Act and free the employees of the respondent from such
unfair labor practices, and the effects thereof, which constitute a con-
tinuing obstacle to the exercise by the employees of the rights guaran-
teed them by the Act, we shall order the respondent to withdraw all
recognition from the Association as a representative of the respond-
ent's employees for the purpose of dealing with the respondent con-
cerning grievances , labor disputes , wages, rates of pay, hours of em-
ployment, and conditions of work, and to disestablish it as such repre-
sentative. Any contract entered into between the respondent and the
Association , whether it be the contract in existence at the time of the
hearing or one entered into subsequent to the hearing, is void and of no
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect. We shall order the respondent to cease giving effect to any
such contract.17
We have found that the respondent engaged in unfair labor prac-
tices in discharging LeRoy Warner, Sr., LeRoy Warner , Jr., and Frank
Jordan . We shall order the respondent to offer reinstatement to
Warner, Sr., Warner , Jr., and Jordan and to make them whole for any
loss of pay they have suffered by reason of their respective discharges
by payment to each of them of a sum equal to the amount which he
normally would have earned as wages from the date of his discharge
to the date of the offer of reinstatement , less his net earnings 18 during
that period.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLusIONs OF LAW
1. Steel Workers Organizing Committee; Amalgamated Association
of Iron, Steel, & Tin Workers of North America, Lodge 1744; and
Ammco Workers Association are labor 'organizations, within the
meaning of Section 2 (5) of the Act.
2. All the respondent's production and maintenance employees,
excluding watchmen (including William Krause) and supervisory
and clerical employees (including Myron Steinback and Allen Irwin),
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act.
3. By dominating and interfering with the formation and admin-
istration of Ammco Workers Association and contributing support to
it, the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (2) of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of LeRoy Warner, Sr., LeRoy Warner, Jr., and Frank Jordan,
and thereby discouraging membership in Amalgamated Association of
Iron, Steel & Tin Workers of North America, Lodge 1744, the re-
17 Matter of West Kentucky Coal Company and United Mine Workers of America,
District 23, 10 N L. R. B. 88; Matter of U. S. Truck Company, Incorporated and Inter-
national Union, United Automobile Workers of America, Local 17$, 11 N. L. R. B 706.
18 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R . B. 440. Monies received
for work performed upon Federal , State, county , municipal , or other work-relief projects
are not considered as earnings , but, as provided below in the Order, shall be deducted
from- the sum due the employee, and the amount thereof shall be paid over to the appro-
priate fiscal agency of the Federal , State , county, municipal , or other government or
governments which supplied the funds for said work -relief projects.
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 361
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
5. By interfering `with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
7. By discharging Cassmir Niemietz and Charles Olson, the re-
spondent has not engaged in unfair labor practices, within the meaning
of Section 8 (3) of the Act.
8. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (5) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Automotive Maintenance Machinery Company, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Ammco Workers Association, or the formation or
administration of any other labor organization of its employees, or
contributing support to Ammco Workers Association, or any other
labor organization of its employees;
(b) Recognizing Ammco Workers Association as the representa-
tive of any of its employees for the purpose of dealing with the
respondent concerning grievances , labor disputes , wages , rates of pay,
hours of employment, or conditions of work;
(c) Giving effect to any contract it may have entered into with
Ammco Workers Association, whether it be the contract in existence
at the time of the hearing in this case or whether it be another entered
into subsequent to said hearing;
(d) Discouraging membership in Amalgamated Association of
Iron, Steel & Tin Workers of North America, Lodge 1744, or any
other labor organization of its employees , by discharging or refusing
to reinstate any of its employees , or in any other manner discriminat-
ing in regard to their hire or tenure of employment or any term or
condition of their employment because of membership in or activity
in connection with any such labor organization;
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities, for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Ammco Workers Association
as the representative of any of its employees for the purpose of deal-
ing with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work, and com-
pletely disestablish Ammco Workers Association as such represent-
ative ;
(b) Offer to LeRoy Warner, Sr., LeRoy Warner, Jr., and Frank
Jordan, immediate and full reinstatement to their former positions,
without prejudice to their seniority or other rights or privileges
previously enjoyed by them;
(c) Make whole LeRoy Warner, Sr., LeRoy Warner, Jr., and
Frank Jordan for any loss of pay they have suffered by reason of
their discharges by payment to each of them of a sum equal to that
which he normally would have earned as wages during the period
from the date of his discharge to the date of such offer of reinstate-
ment, less his net earnings,19 during said period; provided that the
respondent shall deduct from the back pay due each employee a sum
equal to that received by such employee for work performed upon
Federal, State, county, municipal, or other work-relief projects during
the period for which back pay is due him under this Order, and
shall pay any such amount deducted to the appropriate fiscal agency
of the Federal, State, county, municipal, or other government or
governments which supplied the funds for said work-relief projects ;
(d) Post immediately in conspicuous places throughout its plant
notices to its employees stating that the respondent will cease and
desist as provided in paragraphs 1 (a), (b), (c), (d), and (e) of
this Order and will take the affirmative action required by paragraphs
2 (a), (b), and (c) of this Order;
(e) Maintain such notices for a period of at least sixty (60) con-
gecutive days from the date of posting;
(f) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
10 See footnote 18, supra
AUTOMOTIVE MAINTENANCE MACHINERY COMPANY 363
AND IT IS FURTHER ORDERED that the allegations of the amended
complaint charging the respondent with engaging in unfair labor
practices within the meaning of Section 8 (5) of the Act, and the al-
legations of the amended complaint, charging the respondent with
engaging in unfair labor practices within the meaning of Section
8 (3) of the Act by discharging Cassmir Niemietz and Charles
Olson, be, and they hereby are, dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.